EXHIBIT 10.13.4
FOURTH AMENDMENT TO THE
STILWELL FINANCIAL INC. 401(k), PROFIT SHARING AND
EMPLOYEE STOCK OWNERSHIP PLAN
The Stilwell Financial Inc. 401(k), Profit Sharing and Employee Stock Ownership
Plan, as restated effective November 1, 2001, as previously amended, ("the
Plan") is hereby amended, effective January 1, 2003, unless otherwise noted;
1. Section 1.05 of the Plan is amended in its entirety to read as follows:
1.05 COMPENSATION
Compensation means, for purposes of Employee pre-tax
contributions made under Section 3.01 and the matching
contribution made under Section 3.03, amounts paid to an
Eligible Employee by a Participating Employer as "Regular Pay"
(defined below), and, for purposes of other contributions made
under Article 3, amounts paid to an Eligible Employee by a
Participating Employer as "Wages" (defined below). For any
Plan Year, only the amounts paid to the Eligible Employee
during the Plan Year and while the individual is an Eligible
Employee under the Plan shall be taken into account, such
that, for example, no amount paid to the Participant following
termination of his or her employment with a Participating
Employer shall be taken into account as Compensation.
Notwithstanding anything in this definition to the contrary,
in each Plan Year and for each Eligible Employee, no amount in
excess of the applicable limitation under Code Section
401(a)(17) may be considered Compensation. For the Plan Year
commencing January 1, 2003, this limitation is $200,000.
For purposes of determining Compensation of a Self-Employed
Individual, (i) "Regular Pay" means each guaranteed payment
from the Participating Employer representing base
compensation, bonus (other than a retention bonus) or
commissions, provided such amounts are attributable to the
Plan Year, and provided further that such amounts are received
by the Self-Employed Individual within 15 days of the close of
the Plan Year, and (ii) an amount attributable to Compensation
for a Plan Year and paid within 15 days of the close of the
Plan Year shall be treated as paid on the last day of the Plan
Year. Otherwise, Regular Pay is any amount paid to the
Eligible Employee as base salary, bonus (other than a
retention bonus), overtime or commissions.
For purposes of determining Compensation of a Self-Employed
Individual for a Plan Year, "Wages" is the individual's net
earnings from self-employment in the trade or business of the
Participating Employer for which his or her personal services
to the Participating Employer are a material income-producing
factor, determined without regard to items not included in
gross income and the deductions allowable to such items and
the deduction allowed to the taxpayer under Code Section
164(f), and reduced by contributions to a qualified plan
deductible under Code Section 404. Otherwise, Wages means
wages as defined in Code Section 3401(a) for purposes of
income tax withholding at the source, plus all other payments
of compensation reportable under Code Sections 6041(d),
6051(a)(3) and 6052 and the regulations issued thereunder, but
determined without regard to any rules that limit the
remuneration included in wages based on the nature or location
of the employment or the services performed (such as the
exception for agricultural labor in Code Section 3401(a)(2)).
Notwithstanding the foregoing, Wages (i) shall include any
amounts contributed by the Participating Employer on behalf of
the Eligible Employee, pursuant to a salary reduction
agreement which are not included in gross income of the
Employee or Self-Employed Individual due to Code Section 125,
132(f)(4), 402(e)(3), 402(h), 402(k), 403(b) or 457(b), and
(ii) shall exclude the following amounts that otherwise would
constitute wages: reimbursements or other expense allowances,
fringe benefits (cash or noncash), moving expenses, deferred
compensation, welfare benefits, option exercise income and
income realized pursuant to vesting under Code Section 83.
Notwithstanding the foregoing provisions of this Section 1.05,
the terms Compensation, Regular Pay and Wages means W-2 Wages
for a Participant who is affected by the partial termination
of the Plan due to the merger and reorganization of Stilwell
Financial Inc., Janus Capital Corporation, Stilwell
Management, Inc. and Berger Financial Group, as publicly
announced September 3, 2002, (the "Merger and
Reorganization"). For purposes of the Section 1.05, a
Participant shall be considered affected by the Merger and
Reorganization if such Participant's employment with an
Employer ceases as a result of and as part of the Merger and
Reorganization as determined in the sole discretion of the
Employer; provided however that any Participant whose Expected
Last Day of Employment was established by September 30, 2002,
shall be considered affected by the Merger and Reorganization.
For purposes of this section, Expected Last Day of Employment
means the date communicated by an Employer in writing to the
Participant as the Participant's last day of employment. A
Participant shall not be considered affected by the Merger and
Reorganization if the Participant's employment with an
Employer is terminated by an Employer for cause.
W-2 Wages means wages for federal income tax withholding
purposes as defined in Code Section 3401(a), but determined
without regard to any rules that limit the remuneration
included in wages under this definition based on the nature or
location
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of the employment or the services performed. The Plan
Administrator may treat the amount reported as "wages, tips,
and compensation" on Form W-2 as satisfying this definition.
Notwithstanding the foregoing, Compensation includes any
amounts contributed by the Employer on behalf of any Employee
pursuant to a salary reduction agreement which are not
includable in gross income of the Employee due to Code
Sections125, 402(e)(3), 402(h), 403(b) or 457.
2. Section 1.08 is amended by adding to the end thereof a new paragraph to read
as follows:
The term "Eligible Employee" means any Employee in an Eligible Employee
Classification.
3. Section 1.26 of the Plan is amended by deleting the first paragraph of
Section 1.26 and replacing it with a new first paragraph as follows:
The terms Plan, Plan and Trust, and Trust mean the Janus 401(k), Profit
Sharing and Employee Stock Ownership Plan. The Plan Identification
Number is 001. Pursuant to Code Section 401(a)(27), the Plan is
designated a profit sharing plan, and pursuant to Code Section
401(a)(23), a stock bonus plan. Furthermore, the Plan includes
provisions within the meaning of Code Sections 401(k) and 401(m).
4. Section 1.28 of the Plan is amended by deleting the first paragraph of
Section 1.28 and replacing it with a new first paragraph as follows:
Janus Capital Group Inc. is the Plan Sponsor.
5. Section 10.03(c) (relating to compensation for purposes of limitations on
contributions) is amended in its entirety to read as follows:
Compensation means, as selected by the Plan Administrator in its
discretion to apply for the Limitation Year in testing under this
Article 10, any one of the following definitions of compensation
received by an Employee for the Limitation Year from an Employer,
modified as provided below:
(1) Compensation as defined in Treasury Regulation section
1.415-2(d) or any successor thereto;
(2) With respect to a Self-Employed Individual, net earnings from
self-employment in the trade or business of the Participating
Employer for which his or her personal services to the
Participating Employer are a material income-producing factor,
determined without regard to items not included in gross
income and the deductions allowable to such items and the
deduction allowed to the taxpayer under Code Section 164(f),
and reduced by contributions to a qualified plan deductible
under Code Section 404 (referred to as "Earned Income"), and,
with respect to any other Employee, "wages" as defined in Code
Section 3401(a) for purposes of
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income tax withholding at the source, but determined without
regard to any rules that limit the remuneration included in
wages based on the nature or location of the employment or the
services performed (such as the exception for agricultural
labor in Code Section 3401(a)(2)); or
(3) With respect to a Self-Employed Individual, Earned Income (as
defined above), and, with respect to any other Employee,
"wages" as defined in Code Section 3401(a) for purposes of
income tax withholding at the source, plus all other payments
of compensation reportable under Code Sections 6041(d),
6051(a)(3) and 6052 and the regulations issued thereunder, but
determined without regard to any rules that limit the
remuneration included in wages based on the nature or location
of the employment or the services performed (such as the
exception for agricultural labor in Code Section 3401(a)(2)),
and modified, at the election of the Plan Administrator, to
exclude amounts paid or reimbursed for the Employee's moving
expenses, to the extent it is reasonable to believe at the
time of payment or reimbursement that these amounts are
deductible by the Employee under Code Section 217.
Notwithstanding any inconsistent result from use of a definition in
paragraphs (1), (2) or (3) above, Compensation shall include any
amounts contributed by the Participating Employer on behalf of the
Employee, pursuant to a salary reduction agreement which are not
included in gross income of the Employee or Self-Employed Individual
due to Code Section 125, 132(f)(4), 402(e)(3), 402(h), 402(k), 403(b)
or 457(b).
6. Section 11.01(b) (relating to compensation for purposes of discrimination
testing) is amended in its entirety to read as follows:
Compensation means, as selected by the Plan Administrator at its
discretion to apply for the Plan Year for testing under Article 11, any
one of the following definitions of compensation received by an
Employee from an Employer:
(1) Any definition of Compensation determined pursuant to Section
10.03(c), above, further modified to reflect a reduction for
all of the following items (even if included in gross income),
unless, the Plan Administration elects not to make any such
reduction: reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, deferred
compensation and welfare benefits; or
(2) Any reasonable definition of compensation that does not by
design favor Highly Compensated Employees and that satisfies
the nondiscrimination requirement set forth in Treasury
Regulation section 1.414(s)-1(d)(3) or any successor thereto.
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Compensation under this Section 11.01(b) may be limited only to such
compensation paid to an Employee while an Eligible Employee during the
Plan Year, and thus may exclude amounts paid during the Plan Year after
the Participant has ceased to be an Employee. Any definition of
Compensation used under this Article 11 shall be used consistently to
define the compensation of all Employees taken into account in
satisfying the requirements of an applicable provision under this
Article 11.
Compensation under this Article 11 in a Plan Year and for each Employee
is limited to the compensation limitation amount under Code Section
401(a)(17). For the Plan Year commencing January 1, 2003, this
limitation is $200,000.
7. Except as amended above, the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Employer, has caused this instrument to be executed as
of the date specified below.
JANUS CAPITAL GROUP INC.
Dated: March 25, 2003 By: /s/ Loren M. Starr
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Its: Vice President and Chief Financial Officer
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